Strasbourg, 01 February 2007

CCJE REP(2007)28
English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2007 CCJE opinion concerning the councils for the judiciary : Reply submitted by the delegation of Georgia

Introduction

In 2007, the CCJE is called to investigate the institutional roles of Councils for the Judiciary or analogous bodies that have been or are being created – sometimes at a constitutional level – in several European countries with the tasks of protecting judicial independence, taking measures concerning courts’ administration and judges’ careers, and ensuring in general a smooth functioning of the principle of separation of powers, which is a cornerstone of modern democratic States based on the rule of law.1

The composition and functions of such bodies vary from country to country2, as do their relationships with governments (especially with the Ministry of Justice), but the concept is essentially the same.

Responding delegations, whose countries institutional frameworks do not include a Council for the Judiciary as such should not hesitate to reply to the questionnaire making reference to the body or the bodies performing similar functions, in the judiciary or outside of it, in order for the CCJE to obtain as far as possible the clearest description of the situation in these countries. In any case, at the end of the present document, there is a specific part for countries without Council for the judiciary.

For the purpose of this questionnaire, and at this stage of the discussion, the expression “Councils for the Judiciary or other analogous body” (in French “Conseil Supérieur de la Magistrature ou autre organe équivalent”) has been chosen. The work of the CCJE on the Opinion on this subject will be the occasion to justify this choice. In the questions below the terms “Councils for the Judiciary” or “Council” will be used: if it is not the term used in your country, please just indicate it but reply as far as possible to the questionnaire.

Part I - General context concerning the judiciary

Is there possible interference of the legislative power concerning judges? If yes, please specify.

Answer: According to Article 82.3 of the Constitution of Georgia “the Judicial Power (Judiciary) is independent and it is carried out only by the Courts”. Under Article 84 of the Constitution of Georgia “A Judge is independent in his/her activity and subordinates only the constitution and the law. Any influence over the judge or interference in his/her activity for the purpose of influence the adoption of the judgement is prohibited and punishable under the law”.

However, it should be noted that the Constitution of Georgia envisages interference of legislative power with judiciary in terms of their appointment. Particularly, Parliament of Georgia elects three members of the Constitutional Court of Georgia, the Chairman of the Supreme Court of Georgia as well as the Justices of the Supreme Court of Georgia.

Is it possible for the legislative power or the Parliament to order investigations or to establish commissions :
in general concerning judges? If yes, please specify.
concerning judicial performance?
concerning facts already submitted to courts?
concerning procedural acts (eg. telephonic tapping, police custody)

Answer: Article 56.2 of the Constitution of Georgia allows the creation of Parliament’s Investigatory or other temporary commission only in cases envisaged by the Constitution and the Regulation of the Parliament as well as at the request of at least ¼ of the members of Parliament. According to Article 54 of the Regulation of Parliament the ground for the creation of the temporary investigative commission maybe the information: (i) concerning the illegal activities of state bodies and high officials that endangers security, sovereignty, territorial integrity, political, economic and other interests of Georgia; (ii) concerning illegal expenditure of state and local budgetary funds; (iii) the study of which may be very significant for state of society.

Thus, the creation of Parliament’s investigatory commission for those reasons indicated in the questionnaire is not possible. However, the broad meaning of the provisions of the Regulation of Parliament may be interpreted in other way as well.

Is there possible interference of the executive power concerning judges?

Answer: Neither the Constitution of Georgia, nor other Acts of Parliament (as well as other normative acts) envisages the possible interference of executive power concerning judges.

If yes, is it possible for the executive power to interfere:
in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)
in designation of presidents of courts? (if yes, please specify which authority from the executive power)
in management of courts? (if yes, please specify which authority from the executive power)

Answer: The executive power does not interfere in any of the items mentioned in the question above. However, it should be added under the Organic Law (Act of Parliament) of Georgia on Court’s of General Jurisdiction, the Minister of Justice (member of the Government of Georgia) is an ex officio member of the High Council of Justice.

Is the judicial staff working under the authority of:
a judge?
the president of the court?
the Ministry of Justice?

Answer: The judicial staff works under authority of the President (Chairman) of the Court. This stipulation is included in the Organic Law (Act of Parliament) of Georgia on Court’s of General Jurisdiction. Particularly, the President of the Court manages the activity of the staff, in accordance with statutory regulations appoints and dismisses the public servants and other staff members, provides disciplinary measures.

What are the competences of the president of the Court:
to evaluate the work of the judges of the court?
to distribute the work between judges?
to act as a disciplinary authority vis-à-vis judges?
to intervene in the career of judges?
other? If yes, please specify.

Answer: According to the Organic Law (Act of Parliament) of Georgia on Court’s of General Jurisdiction the President of the Court:

Hears the cases, and is a chairman of one of the collegiums (chambers) of the Court;
Manages the activity of the staff, in accordance with statutory regulations appoints and dismisses the public servants and other staff members, provides disciplinary measures;
Distributes the cases among the judges according to statutory regulations;
Carries out organization of the work of the Court;
Meets the citizens and provides the timely discussion of their suggestions and claims;
Provides the generalization of Court’s practice, as well as the suggestions and claims of the citizens claims and submits the materials of generalization to the High Council of Justice;
In case of necessity the President may order the judge to hear the case in other specialized collegium (chamber) within the same court, as well as to perform the functions of Magistrate Judge. The Magistrate Judge may be ordered to carryout duties outside of his/her jurisdiction;
Studies the reasons for the creation of the case load and submits the materials of the study to the High Council of Justice;
Provides the existence of the order in the building of the Court. The President may order to check the participants of the trial and attendants as well as to prohibit to take certain items in the building of the Court and to limit the number of the attendants if there is not enough space in the trial room.
Fulfils other duties according to Georgian legislation.

Part II – General concerning Councils for the Judiciary

Is there a Council for the Judiciary in your judicial system?

Answer: In order to elaborate the suggestions for carrying out judicial reform, to select the individuals for appointment at the position of the Judge, for dismissal of the judges, for organization of the exams of judges and for the fulfilment of other duties as envisaged by the law there is established the President’s Deliberative Body – the High Council of Justice of Georgia

What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)

Answer: The exact title of such a body is – the High Council of Justice of Georgia.

What is the legal basis for the Council for the Judiciary:
the Constitution?
the law?
other? If yes, please specify.

Answer: The legal basis for the high Council of Justice of Georgia – Law of Georgia “On Courts of General Jurisdiction”; Law of Georgia “On disciplinary liability and disciplinary proceedings of the Judges of Courts of General Jurisdiction”; Order #341 of the President of Georgia dated at August 20, 2004 “On Approval of Regulations of the high Council of Justice of Georgia”. It should be noted that Article 73.1.”p” of the Constitution of Georgia confirms the principle according to which the President of Georgia presides at the High Council of Justice of Georgia.

Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)

Answer: The Deliberative Body of the President of Georgia – the High Council of Justice of Georgia (until 2004 – Council of Justice of Georgia) was founded in 1997 and was aimed at transformation of the archaic soviet system of justice in Georgia to the new judiciary system. Judicial power required a lot of changes, including institutional, personnel, financial, administrative and etc.

According to the legislation in force, the main areas of activity of the High Council of Justice of Georgia are organization of the qualifying exams for judges, selection of the judges and presentation of the candidacy to the President of Georgia, coordination of the professional training, retraining and methodical securing of the judges and legal officials, disciplinary proceedings, methodical securing of the development of the paper work at courts, preparation of the social guarantees and legal amendments.

Part III - Composition

What is the composition of the Council for the Judiciary:
Number of members?
Qualification of the members?
For the “judges” members, do they need specific qualifications or experiences?
Can non-judges be members of the Council? Please specify (number, qualification/specific functions)

Answer: ▪The High Council of Justice of Georgia consists of 19 members. The President (Chairman) of the Supreme Court of Georgia, the head of the Parliamentary Committee of Legal Issues and Minister of Justice of Georgia are ex officio members of the High Council. Two (2) members of the High Council of Justice of Georgia are appointed by the President of Georgia; Five (5) members (4 of them are the members of the Parliament of Georgia) are elected by the Parliament of Georgia; Nine (9) members are elected by the Conference of the Judges of Georgia from the Judges of the Courts of General Jurisdiction upon submission by the President (Chairman) of the Supreme Court of Georgia. In order to ensure organizational and technical issues of the activity of the High Council of the Justice of Georgia there is founded the Administration of the High Council of Justice of Georgia.

The term of the members of the High Council of Justice of Georgia (except for those who are ex officio members) is 4 years.
▪The member of the High Council of Justice of Georgia when he/she is not a member of Parliament of Georgia, Minister of Justice of Georgia or a Judge, may be a citizen of Georgia at the age of 25 in case he/she has the legal education.
▪ Judges-members of the high Council of Justice of Georgia do not require any special qualification or experience. To become a member, the Judge shall give his/her prior written consent.
▪ The high Council of Justice of Georgia consists of 9 members who are not Judges, including: the head of the Parliamentary Commission on legal Issues; Minister of Justice of Georgia; 2 members appointed by the President of Georgia; 5 members elected by the Parliament of Georgia (among them – 4 members of Parliament). 2 members appointed by the President of Georgia and a member, elected by the Parliament of Georgia, who is not the member of Parliament shall have the legal education.

Please describe the whole procedure of appointment:
Who designates the members (judges or other institutions or authorities – please specify)?
What is the appointment system (voting, individual candidates, designation, etc.)?

Answer: ▪ The High Council of Justice of Georgia consists of 19 members. The President (Chairman) of the Supreme Court of Georgia, the Chairman of the Parliamentary Committee on Legal Issues and Minister of Justice of Georgia are ex officio members of the High Council. Two members of the high Council of Justice of Georgia are appointed by the President of Georgia; 5 members (4 of them are the members of the Parliament of Georgia) are elected by the Parliament of Georgia; 9 members are elected by the Confederation of the Judges of Georgia among the Judges of the Courts of General Jurisdiction upon submission by the head of the Supreme Court of Georgia
▪ Appointment system is indicated in the answer to the 11th question.

How is appointed the President and/or Vice-President of the Council?

Answer: President of Georgia appoints a person among the members of the high Council of Justice of Georgia (except for those, who are ex officio members) who shall be the Secretary of the High Council of justice of Georgia for 4 years. The position of the Secretary is incompatible with any other public office (position). The Secretary is in charge of everyday management of the High Council and fulfilment of its functions.

Legislation in force does not envisage the position of the Deputy Secretary.

What is the term of office for a member of the Council?

Answer: The term of the members of the High Council of Justice of Georgia (except of those who ex officio members) is 4 years.

May a member be removed from office against his/her will and, if so, under what circumstances?

Answer: There are following reasons for removal of the member of the high Council (except for the President (Chairman) of the Supreme Court of Georgia, the Chairman of the Parliamentary Committee on Legal Issues and Minister of Justice of Georgia):
a) Personal request;
b) Move or election for the new position with his/her consent;
c) Failure to perform his/her obligations within 6 months running;
d) Permanent failure to perform his/her obligations or unduly performance;
e) Incompatible position or incompatible activity;
f) Member declared by court incapable or of limited capability;
g) Enforcement of his/her indictment;
h) Cessation of the Georgian citizenship;
i) Expiration of the term;
j) Death.
Except for the above-mentioned reasons for removal, the reasons for removal of the member of the Parliament of Georgia, Judge and the member of the high Council of Justice of Georgia due to his/her position may be, accordingly, termination of the parliamentary authority, dismissal (move) of the judge and the member of the high Council of Justice of Georgia due to his/her position.

Part IV - Resources

Where does the Council receive its financial resources?

Answer: The source of finances of the high Council of Justice of Georgia is the state budget of Georgia.

Does the Council have its own staff?

Answer: To ensure organizational and technical issues of the activity of the High Council of the Justice of Georgia there is created the Administration of the High Council of Justice of Georgia. The structure and powers of the Administration of the High Council of Justice of Georgia are determined by the Presidential Order, according to which there are three (3) departments established in the High Council of justice of Georgia: (i) Department of Legal and Organizational Provision; (ii) Department of Judiciary Ethics and Disciplinary Proceedings and (iii) Department of Personnel and Paper Work Issues.

If not, is the personnel provided by:
the Ministry of Justice?
the Supreme Court?
other institution? Please specify

Answer: Personnel is not provided by any body mentioned in the question.

What is the staff number?

Answer: There are 48 staff members in the Administration of the High Council of Justice of Georgia.

What are the qualifications of the staff?

Answer: Due to the specific of work, the staff generally include people with legal education, also people who have appropriate experience in finances – only in financial and economic department.

Must the staff be composed, albeit only in part, by judges?

Answer: The activity of the staff member of the Administration of the High Council of Justice of Georgia is paid. According to the Article 86 of the Constitution of Georgia, the position of Judge is incompatible with any other position and paid activity, except for the pedagogic and scientific activity. Thus there are no judges in the staff of the High Council.

What are the tasks of the staff of the Council:
preparing materials for the Council members?
providing them with analysis and evaluation of the courts’ practice?
other? Please specify.

Answer: 1. The objectives of the Department of Legal and Organizational Provisions are to secure the lawmaking activity of the high Council of Justice of Georgia; preparation of the proposals on law administration issues; preparation of the proposals and recommendations to promote the judicial reform; performing works for the purposes of the financial and economic provision of the activity of the High Council of Justice of Georgia; disposal of the budgetary funds and tangible assets allocated by the state budget.
2. The objectives of the Department of Judiciary Ethics and Disciplinary Proceedings are to perform disciplinary proceedings on the basis of the normative acts related to the disciplinary liability and disciplinary proceedings of the judges of the Courts of General Jurisdiction; preparation of the drafts of the documents related to the disciplinary proceedings; preparation of the statistics of the disciplinary proceedings carried out by the High Council of the Justice of Georgia; generalization of the practice of the disciplinary proceedings.
3. The objectives of the Department of Personnel and Work Paper are registration of the judges of the Courts of General Jurisdiction and personnel of the high Council, maintain their work record card and composition of the service record list; announcement of the vacancies, organization of the certification procedures; preparation for the qualifying exams; registration of the property and financial declarations.

Part V - Tasks

Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):

in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?

in area of initial and/or continuous training for judges and/or courts’ staff3?

in area of courts’ performance in general (assessment of quality of court performance4, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?

in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements5)?

in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?

in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?

in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify

Answer: I. The high Council of Justice of Georgia submits to the President of Georgia:
a) Statements on determination of the number of district (city), regional courts, also on determination of the number of judges in appeal court panel and chambers;
b) Statements on determination of the area of activity of the district (city) and appeal courts;
c) Candidacies of the district (city) and appeal court judges selected on a competitive basis;
d) Statements on removal of the district (city) and appeal court judges, investigation of the cases of judges and discharge them of official duties when there is a legal basis for such actions;
e) The composition of the judges’ qualifying commission;
f) The structure and the list of staff members of the administration of Courts of General Jurisdiction (except for the Supreme Court);
g) Rules of organizational work of the Courts of General Jurisdiction;
h) Recommendations for encouraging of the judges;
i) Proposals for the issues of the judiciary reform;
j) Provisions of the regulation of the high Council of Justice of Georgia and its Administration, provisions of the regulation of the qualifying exams, the rules of examination, the content of the qualifying exams and the regulation of the competition;
k) The regulation of the departments of the Courts of General Jurisdiction;
l) The proposals on positional distinctive signs and uniform of the judges;
m) The judiciary oath;
n) The proposals for the amendments and alterations to the regulation of the high Council of Justice of Georgia, the qualifying examination commission and provisions of the competition;
o) The draft of the document on financing of the Courts of General Jurisdiction and departments of the courts of General Jurisdiction from state budget.

II. The High Council of Justice of Georgia:
a) Presents to the Conference of Judges of the Courts of General Jurisdiction the Charter, Regulation and Code of Ethics for judges for approval;
b) Presents to the Conference of Judges of the Courts of General Jurisdiction and, between the meetings of the Conference, to the administrative commission the candidacies of the members and chairman of the Disciplinary board for approval;
c) Determines particular specialization of the judges in a district (city) courts where the number of judges is over 20;
d) Announces vacancy in a district (city), regional courts immediately to fill a position, registers the competitors and performs selection. In case the President of Georgia does not approve the presented candidate, holds a competition anew;
e) Starts a disciplinary prosecution of the judges of the Courts of General Jurisdiction;
f) Examines the papers submitted by the Chairmen of the district (city) and appeal courts on judiciary practice, on generalization of the applications, complaints and proposals of the citizens, makes decision within its competence;
g) Reviews the papers of the analysis of the judiciary statistics;
h) Hears the report of the Chairman of department of the Courts of General Jurisdiction;
i) According to the Article 13 of the Law of Georgia “On a Rule of distribution of the cases and assignment of the authority to another judge at the Courts of General Jurisdiction”, in case the judge is temporarily assigned in another district, the Council is authorized to make decision on assignment of the assistant to judge and secretary of the hearing.

III. In order to exercise the authorities granted by the law the High Council of Justice of Georgia:
a) Examines the drafts of laws related to the work of the courts and presents its opinion/conclusion;
b) Within its competence will develop proposals on issues proposed by the President, Conference of Judges or other governmental bodies;
c) To effectively exercise the functions of the Council creates temporary commissions;
d) Exercises other authorities under the legislation in force.

IV. Relating to the above-mentioned issues the High Council of Justice of Georgia is authorized to develop the draft of the Presidential order or instruction, or make the decision of the high Council of Justice.

It should be noted that initial and following training of the judges and judiciary personnel are organized by the High School of Justice. The High School of Justice is autonomous body created in April 2006 and its main task is to ensure the professional education of the judge-to-be and retraining of the acting judge for strengthening the professional qualities of the judges in the Courts of General jurisdiction.

Disciplinary cases of the judges of the Courts of General Jurisdiction are investigated by the Disciplinary Panel (Cllegium) of the judges of the Courts of General Jurisdiction. The Disciplinary Panel (Collegium) shall not exceed the limits of the disciplinary indictment (factual part of the indictment). It also can not substantially discuss the issues that directly are not related to the disciplinary indictment of the judge, or return him/her guilty for the disciplinary breach he/she was not accused of, and impose disciplinary liability and payment. The decision of the Disciplinary Panel may be appealed in a Disciplinary Chamber of the Supreme Court of Georgia. The indicted judge files appeal personally, or through advocate, or through other representative. The Disciplinary Chamber of the Supreme Court consists of 3 members and is appointed for the period of three years by the Plenum of the Supreme Court. The Chairman of the Supreme Court presents the candidacies of the members of the Chamber (including the chairman of the Chamber) from the members of the Supreme Court for approval at the Plenum.
The Disciplinary Chamber examines the decision of the disciplinary panel within the limits of the complaint, the factual, legal and financial issues of the case. In cases of legal basis, the High Council of Justice of Georgia can start disciplinary proceedings against any judge of the Courts of General Jurisdiction of Georgia.

On the basis of proposal of the Department of the Courts of General Jurisdiction and with the consent of the President, the High Council of Justice of Georgia submits to the Government of Georgia the draft of financing of the Courts of General Jurisdiction and Department of the Courts of General Jurisdiction from the state budget.
The Department of the Courts of General Jurisdiction of the High Council of Justice of Georgia:
a) Commands finances to ensure the activity of the courts and their material support;
b) Provides the courts with necessary buildings;
c) Checks the expenses of the material and financial resources by the courts;
d) Performs other actions for material support of the courts’ activity.

The expenses for the organization and activity of the Supreme Court of Georgia are envisaged in a separate article of the state budget. The draft of expenses of the Supreme Court of Georgia shall be presented by the Chairman of the Supreme Court in accordance with legislation.

In order to exercise the authorities granted by the law the High Council of Justice:
a) Examines the drafts of laws related to the activity of the court and develops relevant opinions/conclusions;
b) Within its competence is authorized to prepare the draft of Presidential Order or instruction, or make the decision of the High Council of Justice of Georgia.
The high Council of Justice of Georgia is not accountable before the Government or Parliament of Georgia.

Does the Council have investigation powers? If yes, please specify

Answer: Upon receipt of the complaint, application or other information on disciplinary breach of the judge, the Secretary of the High Council of Justice of Georgia or other member of the Council (or upon the instructions of the Secretary of the High Council - the staff member of the Administration of the High Council of Justice) shall make advance check (examination) of the validity of information, within 2 months from its receipt. The term of the preliminary examination may be prolonged for 2 weeks or it may be terminated because of the impossibility of its examination.
As a result of the preliminary investigation, the Secretary of the High Council of Justice of Georgia evaluates the validity of the disciplinary proceedings and makes decision on termination of the disciplinary proceedings or on obtaining explanation form the judge.
The decision of the Secretary of the High Council of Justice of Georgia shall be submitted to the high Council of Justice for consideration. In case the high Council of Justice does not approve the decision, the Secretary of the high Council of Justice shall resume the disciplinary proceedings and makes decision to demand an explanation from the judge.
The investigation of the disciplinary case shall be completed within 1 month since the decision to demand an explanation is made. In special cases the term may be prolonged but not more than for 2 weeks.
The Secretary obtains explanation as from the author of the complaint (application), as from the judge under disciplinary proceedings. The body that performs the disciplinary investigation is authorized to ask for any information, documents and data related to the case, invite other person and hear his /her information. He/she shall examine the motion of the judge under the disciplinary proceedings and in case of his request demand for the additional explanation. The Secretary of the high Council of Justice of Georgia is authorized to obtain on demand any court papers except for the cases under the court review.
When the papers of the disciplinary case are manifestly show the disciplinary breach, the papers of the case shall be forwarded to the investigating body. Then the disciplinary proceedings shall be stopped.

How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe

Answer: According to the Organic Law of Georgia “On Courts of General Jurisdiction”, the chairman of the court shall ensure the generalization of the court practice, applications, complaints and proposals of the citizens and shall submit the generalized materials to the high Council of Justice of Georgia, also examines the reasons for the case-load at courts and submits relevant information to the High Council of Justice of Georgia.

What are the types of norms that the Council can issue:
opinions on the functioning of the judiciary?
recommendations?
instructions to the courts?
decisions?

Answer: The High Council of Justice of Georgia can issue decision, submission, proposal, reference, private reference letter. The norm of the High Council of Justice of Georgia can be submitted together with the different opinion of one or several members.
The decision, submission, proposal, reference, private reference letter of the High Council of justice of Georgia shall be signed by the Secretary of the Council, in his/her absence – by a person acting as the Secretary.
The rules related to the paper work, issues of the management of the Courts of General Jurisdiction, also the templates for the paper work and numbering are also determined by the High Council of Justice of Georgia.

Are the functions or responsibilities of the Council described in law or other norms? Please specify.

Answer: The functions and responsibilities of the Council are determined by the Constitution, Organic Law of Georgia “On Courts of General Jurisdiction”, Law of Georgia “On Disciplinary Responsibility of the Judges of the Courts of General Jurisdiction and Disciplinary Proceedings”, “The Regulations of the High Council of Justice of Georgia” approved by the Order #341 of the President of Georgia dated at August 20, 2004.

If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?

Answer: No, the formation of the tasks are concrete and specific.

Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?

Answer: We have “A Code of Ethics for Judges” approved by Regulation #6 the Conference of the Judges dated as of June 23, 2001 and it is the task of high priority of the High Council of Justice of Georgia to ensure the code observance.

Does the Council handle external relationships of the courts:
has it a public relations department?
how does it ensure the transparency of its functioning and organisation?

Answer: The Administration of the High Council of Justice of Georgia has the press-centre, which provides the mass media and other interested parties with information on judiciary reform and regularly updates the web page of the Council. The similar service is rendered by the Supreme Court of Georgia.
To ensure the transparency in relationships between the public society and the court there was set up a position of the speaker-judge like in western countries. Through the speaker-judge the Court provides the society with information about its activity and presents its opinion on particular issues.
Gradually the contacts of the media and the court are improved that fosters the civilized relationships between the society and the court. In the near future each room for court hearings/meetings in Georgia will have special places for electronic filming; the modern audio equipment will help the electronic media to prepare information of high quality. Such changes will eliminate the permanent movements of cameras in a Courtroom that hinders the court activity.

Are decisions of the Council published and available to all?

Answer: The acts of the High Council of Justice of Georgia may be sent to the Administration of the President of Georgia, to the Parliament of Georgia and to the Supreme Court of Georgia, in other cases – to other Governmental bodies and private persons who may be in touch of the issue discussed.

Part VI – Assessment of the self-governance and the independence of the judiciary

To what extent is the work of the Council influenced by:
the executive power?
the legislative power?

Answer: The work of the High Council of Justice of Georgia is not influenced by the executive or legislative power. At the same time, remarkable that, according to the Organic Law of Georgia “On Courts of General Jurisdiction”, the Minister of Justice is an ex officio member of the Council and simultaneously he is the member of the Government of Georgia. in addition, the Parliament of Georgia with 3/5 of votes elects three members of the Council from the members of the Parliament and with the majority of votes - the Chairman of the Supreme Court and Judges of the Supreme Court.

Is the Council independent from other States entities, so that it is not subject to control liability in their respect?

Answer: The High Council is independent from other State entities and it is not oblige to bring its powers to conformity with their interests..

Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?

Answer: The high Council of Justice of Georgia and the Ministry of Justice are different institutions. The first one, according to the Constitution and the Organic Law of Georgia “On Courts of General Jurisdiction” is the deliberative body of the President of Georgia; the second one is created on the basis of the law to ensure the public administration in important areas of state and social life. This is a base unit of the Government of Georgia. Thus, it is impossible to discuss the division of responsibility and authority between the High Council of Justice of Georgia and the Ministry of Justice. Their functions and responsibilities have nothing in common because these bodies act in absolutely different areas.

Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?

Answer: The meetings of the High Council of Justice of Georgia are presided over by the President of Georgia, or upon the instructions of the President – by the Secretary of the High Council. As for the disciplinary proceedings against the judges of the Courts of General jurisdiction, the meetings of the High Council of Justice of Georgia are convened by the Secretary of the High Council and are presided over by the Chairman of the Supreme Court of Georgia.

The official salary and structure of the posts for the staff of the Supreme Court of Georgia are determined by the Chairman of the Supreme Court of Georgia; the official salary and structure of the posts of the Courts of General Jurisdictions (except of the Supreme Court) are determined by the High Council of Justice of Georgia.

The structure of the posts of the members of staff of the Supreme Court are approved by the Chairman of the Supreme Court of Georgia; the structure of the posts of the staff and the structure of the Courts of General Jurisdiction of Georgia (except for the Supreme Court) are approved by the President of Georgia.

The draft of the expenses of the Supreme Court of Georgia shall be submitted in accordance with law by the Chairman of the Supreme Court; the draft of the state financing of the Courts of General Jurisdiction (except of the Supreme Court) and the Department of the Courts of General Jurisdiction on the basis of proposals of the Department, with the consent of the President, shall be submitted to the Government of Georgia by the High Council of Justice of Georgia.

The High Council of Justice of Georgia on the basis of proposals of the Department of the Courts of General Jurisdiction shall develop the structure and determine the number of established positions of the Courts of General Jurisdiction (except for the Supreme Court) and submits to the President for approval.

In order to ensure the unimpeded judiciary activity, the Supreme Court does maintain staff, the structure and the rule of the work and the structural units of which are determined by the Regulation of the Supreme Court. The rule of work for the Courts of General Jurisdiction is prepared by the High Council of Justice of Georgia and submitted to the President of Georgia for approval.
The Chairman of the Supreme Court of Georgia supervises and controls the activity of the security officers at the Supreme Court.
The Chairman of the Supreme Court of Georgia presents to the Conference of Judges 9 judge-members for election.
In addition, the Chairman of the Supreme Court of Georgia:
a) Manages the general activity of the Supreme Court;
b) May be the Chairman of one of the chambers; also presides over the Plenum and the meeting of the Grand Chamber, when necessary presides over the meetings of the chambers of the Supreme Court;
c) Manages the Administrative Committee and coordinating board of the Conference of Judges;
d) On behalf of the judiciary branch gets into touch with other branches of the state power, mass media and society relating to the general issues of the administration of the justice;
e) Manages the activity of the Supreme Court staff;
f) Appoints and removes the Supreme Court staff members and other employees;
g) Appoints the judge vested with due powers to issue orders for performing the technical and strategic actions that are envisaged by Law of Georgia “On Counterespionage”;
h) Commences the disciplinary proceedings against judges and enjoys other disciplinary authority;
i) Makes decision on criminal responsibility, detention or arrest of the judge, also on search in his apartment/house, vehicle, work place and personal search;
j) Leads the professional examination of the members of the Supreme Court;
k) Performs other actions in accordance with Georgian legislation.
As for the authorities of the Chairman of the Court, they are described in the answer to the 6th question.

Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?

Answer: The Chairman and the members of the Supreme Court of Georgia on the recommendation of the President of Georgia and by the majority of votes elects the Parliament of Georgia for the period of 10 years. One and the same parson may be nominated for the membership of the Supreme Court only twice.
The disciplinary proceedings against the judges of the Supreme Court may be commenced both by the Chairman of the Supreme Court of Georgia (or the person acting on his behalf) and the High Council of Justice of Georgia. There are no different rules for Supreme Court to that respect.

Who decides which the priorities of actions of the Council are?

Answer: Both the President and the Secretary of the High Council of Justice of Georgia determine the activity of the Council. The President of Georgia:
a) Leads the activity of the High Council of Justice; approves the working plan of the High Council of Justice;
b) In order to develop recommendations and proposals puts the questions before the High Council of Justice related to the duties of the high Council according to the legislation;
c) Sends to the High Council of Justice the relevant proposals and recommendations on the issues that may be decided by the High Council because of the delegated powers of the President. Also he puts a question on reconsideration of the decisions of the high Council of Justice
The High Council of Justice of Georgia:
a) Ensures the organizational and technical maintenance of the work of the High Council;
b) Leads the staff of the High Council of Justice, appoints and removes the staff members of the High Council and other employees. Together with the Conference of Judges and, between the sessions of the Conference, with the Administrative Committee appoints and removes the chief and deputy chiefs of the department of the Courts of General Jurisdiction;
c) Distributes the areas of supervision between the members nominated by the President and elected by the Parliament (if he/she is not the member of the Parliament);
d) Organizes the distribution of the complaints and applications of the citizens between the members of the High Council;
e) Organizes the working meetings of the members of the High Council of Justice.

Is it possible for the individual courts or judges to appeal the decisions of the Council? How?

Answer: In case the disciplinary proceeding towards any judge is implied in this question, the decision-making body is the Disciplinary Panel (Collegium), which is the body independent form the High Council of Justice. At the same time, the legislation in force envisages the possibility to appeal the decision of the Disciplinary Panel through filing a complaint to the Disciplinary Panel.
The complaint to the Disciplinary Panel shall be filed within 10 days. This term cannot be prolonged (restored) and it runs from the moment the decision of the panel was handed over. The exact time of delivery is the time when the copy of the decision was handed over in the Disciplinary Panel or dispatch by the mail.
The Judge imposed with disciplinary liability may appeal the decision of the Disciplinary Panel personally or through advocate, or through other representative.
Within 5 days after the complaint of one or both parties are received, the Chairman of the Disciplinary Panel forwards to the Disciplinary Chamber the disciplinary case together with the complaints and notifies the parties involved.
The State fees shall not be paid for the complaint on the decision of the Disciplinary Panel.

Which instruments or practices are used by the Council:
to guard the independence of judges?
to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?
to intervene in case of attacks against its own interests6?
to improve the working methods of judges?

Answer: To ensure the independence of the judges, the High Council of Justice of Georgia selects the judges by means of the qualifying exams, evaluation of the business and ethical reputation, professional experience and health condition; examines the materials on court statistics, generalization of the court practice, citizens’ applications, complaints and proposals; participates in development of the legislation, which provides more independence to the judiciary power and in administration of the justice; cooperates with the international organizations and takes into account their recommendations; contributes to the improvement of the material and technical basis of the Courts of General Jurisdiction; prepares the proposals for improvement of the social needs of the judges.
Interference in a process of administration of the justice and activity of the judiciary power is a criminal action. At the same time, there is a position of the security officer in the staff of the Courts of General Jurisdiction. The main duties of the security officer are to maintain order in a building of the court and during a court hearing, prevent and avoid illegal actions, ensure the safety of the judge and the parties to the proceedings. The security officer obeys only the chairman of the court, or chairman of the hearing and may use physical force and other means in specials cases with the permission of the chairman. In case of necessity he may ask for police assistance.
In addition, in order to ensure the order in a building of the court and during the hearings, the number of the public presenting in the courtroom is restricted by the number of sitting places. The legislation is toughened towards the issues of the order in the courtroom and towards the public presenting there. The judges are authorized to fine the public disturber in amount from 50 to 500 GEL, to remove from the courtroom or arrest for the period up to 30 days.
All above-mentioned (including the allocation of the place for electronic filming of the hearing) are aimed at elimination of the circumstances violating the ordinary course of activity at court and will promote free administration of justice.
As for the improvement of the methods of work for judges, the High Council of Justice of Georgia examines the problems at Courts of General Jurisdiction that hider the activity both the judge and the staff of the court. Together with the careful study of the problems we are preparing relevant changes to the legislation and take particular measures to resolve particular issues.

Part VII – Future trends of Councils for the Judiciary

Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.

Answer: We do not have the problems of such nature in Georgian Courts of General Jurisdiction.

Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.

Answer: In the near future the reform of the High Council of Justice of Georgia is envisaged. In particular, according to the draft constitutional amendments the President will not preside over the meetings of Council and, accordingly, the Council will not be the deliberative body of the President of Georgia. The Council will be an independent body, which will make decisions about the election of the candidacies, appointment and removal of the judges, organization of the qualifying exams and other issues set by legislation on its own.

Are there relations between the Council for the Judiciary and judges' professional organisations or associations?

Answer: To strengthen the independence of the judicial branch, people’s trust and credence, to gain and increase the prestige of judges there is created the self-governing body - Conference of Judges.
The Conference of Judges with the recommendation of the Chairman of the Supreme Court of Georgia elects 9 members of the High Council of Justice of Georgia.

The Secretary of the High Council of Justice of Georgia together with Conference of Judges or, between the meetings of Conference, in arrangement with the Administrative Committee appoints and removes the Chairman and the Deputy Chairman of the Department of the Courts of General Jurisdiction.
The Chairman of the Department of the Courts of General Jurisdiction is accountable before the High Council of Justice of Georgia and the Conference of Judges.
The Conference of Judges with the recommendation of the High Council of Justice of Georgia passes the Code of Ethics for Judges.
The decrease of the amounts allocated in the state budget for current expenses of the Courts of General Jurisdiction is possible only by consent of the Conference of Judges.

If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
concerning the national actions of your Council?
concerning international co-operation?

Answer: Georgia is not the member of the European Network of Councils for the judiciary (ENCJ).

Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.

Answer: All features of the high Council of Justice of Georgia are contained in the answers.

Part VIII – Countries without a Council of the Judiciary

Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?

Answer: The Constitution of Georgia ensures the principle of separation of powers with respect to judiciary. According to the Article 82.3 of the Constitution “judicial branch is independent and solely the courts carry out justice”. To strengthen the principle of separation of powers with respect to the judiciary, there shall be prepared the constitutional amendments, according to which the President will no longer be the Chairman of the High Council of justice of Georgia.

How and by whom are judges appointed and promoted?

Answer: Judges are appointed and promoted by the President of Georgia with recommendation of the High Council of Justice of Georgia.

Does any authority (body) independent7 of the government and the administration take part in the appointment and promotion process:

If yes, how is this authority composed? Is a certain share of judges fixed?
How are the members selected?
what are the detailed competences of the authority with respect to the appointment and promotion of judges?

Answer: Only the High Council of Justice of Georgia appoints and promotes the Judges. The composition of the High Council of Justice of Georgia and the rules for election (appointment) of Judges in the Council are described in the answer to the 11th question. As for the competence of the Council in appointment and promotion of the Judges, during the selection process the results of the qualifying exams, business and ethical reputation of the candidacy, professional experience, health condition are determining factors. In case of promotion, the essential are qualification of the judge, business and ethical reputation, qualities and skills of the Judge that came to light during his professional activity; statistics of the cases examined by the Judge and stability of the judgements in the Courts of higher instances; scientific achievements.

How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

Answer: Please, see the answer to the 23rd question.

Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?

Answer: Such Council is already created in Georgia.

1 Restructuring of the organisation of courts and introduction of modern management techniques, as well as the balance that needs to be guaranteed as for independence of judges, have been discussed by the CCJE in some of its previous Opinions (See references of these Opinions below in footnotes – For the list and the exact titles of the CCJE’s Opinions, please consult the website: www.coe.int/ccje).

2 The Councils or analogous bodies can be roughly divided between a Northern and a Southern European model. In the Northern European (for example Sweden, Denmark, Norway) model the organisation of the administration of the courts dominates. In these countries, the bodies – whose relationship with the Ministries of Justice is quite close - have extensive powers also in determining the budgets and management of the courts. In Southern Europe (in countries such as Italy, France, Spain, Portugal, Greece, Belgium) the Councils – that are separated from the Ministry of Justice - mostly deal with the recruitment of the judges, and their training, evaluation, transfers, promotion and discipline. Additionally, a Russian model is also identifiable, in which the highest courts of the country are vested also with the powers of their courts’ administration. As to Central and Eastern European countries, Lithuania and Hungary approach to the Northern European model, whereas Romania, Bulgaria and Poland are closer to the Southern European model. The common law countries have specific judicial commissions that perform tasks comparable with the one of the Councils.

3 Please consider the following statements contained in the CCJE’s Opinion No. 4:
- para. 17: "In order to ensure proper separation of roles, the same authority should not be directly responsible for both training and disciplining judges. The CCJE therefore recommends that, under the authority of the judiciary or other independent body, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation.";
- para. 18: "Those responsible for training should not also be directly responsible for appointing or promoting judges. If the body (i.e. a judicial service commission) referred to in the CCJE's Opinion N° 1, paragraphs 73 (3), 37, and 45, is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks.".

4 Please consider the following statements contained in the CCJE’s Opinion No. 6: - para 34: “The CCJE strongly emphasises, first of all, that the evaluation of "quality" of the justice system, i.e. of the performance of the court system as a whole or of each individual court or local group of courts, should not be confused with the evaluation of the professional ability of every single judge. Professional evaluation of judges, especially when aiming at decisions influencing their status or career, is a task that has other purposes and should be performed on the basis of objective criteria with all guarantees for judicial independence”.

- para 47: “The CCJE believes that it is in the interest of the judiciary that data collection and monitoring be performed on a regular basis, and that appropriate procedures allow a ready adjustment of the organisation of courts to changes in the caseloads. In order to reconcile the realisation of this need with the guarantees of independence of the judiciary (namely, with the principle of irremovability of the judge and the prohibition of removal of cases from a judge), it seems advisable to the CCJE that the authority competent for data collection and monitoring should be the independent body (…); if another body is competent for data collection and monitoring, the states should assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice; the independent body should however have power to take measures necessary to adjust the court organisation to the change in caseloads.”

5 Please consider the following statements contained in the CCJE’s Opinion No. 1:

- para 45: “Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long-entrenched and democratically proved systems.”

- and para 34 of CCJE’s Opinion No. 6 (see footnote 4 above). 6 Please consider the following statements contained in the CCJE’s Opinion No. 7:

- para 55: “When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that, in view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases. “

7 One example is the Committees for the Selection of Judges in several German Länder (composed mainly of members of Parliament and judges) who may decline the Minister’s of Justice suggestion for the appointment or promotion of a candidate (veto right). Another example are the German Councils for Judicial Appointments which consist of the president of the court and of judges elected by their colleagues who deliver a written (not binding) opinion on a candidate’s personal and professional aptitude (as provided by Land law with respect to appointment and/or promotion).



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